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12 Apr 2017

Nick Barnard discusses pre-charge bail in Lawyer Monthly

Last week, the UK saw the enforcement of a 28-day limit on police bail. This comes after criticism of scenarios where people have been kept on police bail for months, and in cases even years, without charge during investigations, essentially in a legal limbo. There is still the flexibility of an extension up to three months in complex cases, but before this change, police bail periods had no limit.

Given the sensitivity of these bail scenarios, authorities and the majority of the public back the change, and are leaning on the effective adaptation of police forces, but some are also not as keen, claiming the new rule could put victims at risk because suspects may be released without conditions.

Nick Barnard, Associate, Corker Binning:

Since its introduction in its present form by the Police and Criminal Evidence Act 1984, pre-charge bail has been a valuable tool for investigators during the preliminary stages of a criminal enquiry. It allows suspects under arrest to be released from custody whilst obliging them to return in future for further interview or charge. In the interim, they may be subject to conditions restricting their movements and behaviour, such as surrendering their passport or regularly reporting to a police station.

Whilst the benefits for the investigator are obvious, limited judicial oversight and lack of statutory time limits meant that police bail could be used to disproportionately restrict the rights of suspects for an indefinite period. However, following its Royal Assent earlier this year, sections of the Police and Criminal Evidence Act 2017 concerning pre-charge bail are now in force which significantly curtails its use.

As of Monday 3rd April 2017, there is a presumption that all suspects who are under arrest will be released without bail unless it is ‘necessary and proportionate’ – previously there was no requirement for proportionality. Furthermore, in most cases a suspect may only be kept on bail for 28 days without the approval of a superintendent (or senior) and up to three months before being approved by a magistrates’ court. Even where the court does grant approval, the application must be revived every three or six months, depending on the complexity of the case.

On paper, this is progress. However, in practice it will be of no benefit if not accompanied by a change in attitudes and a considerable boost to resources. After all, if pre-charge bail had previously only been utilised where necessary and proportionate, and investigations dealt with in a timely and expeditious fashion, there would have been no need for reform.

If the reforms are to succeed, the police must regard the new procedures as achievable targets and necessary safeguards, which protect the rights of those who have yet to be charged with any offence.

It also means we must also support the inevitable call for the more onerous requirements to be matched by a sufficient increase in resourcing, both for the investigating agencies and the ancillary services (e.g. forensic experts) upon which their work depends.

It would be the worst of all worlds if the new pre-charge bail regime became another cause of, or an excuse for, further delay in criminal investigation.

Read the full article in Lawyer Monthly here and an extended version here.

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